09/20/2024 – 6:00
The Federal Supreme Court (STF) will resume this Friday, the 20th, the trial of two appeals against the Court’s decision that overturned the possibility of reviewing the entire life of pensions from the National Institute of Social Security (INSS).
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The case will be judged by the virtual plenary between today and September 27. Minister Alexandre de Moraes canceled the request for a highlight made in August to suspend the virtual trial and begin the deliberation in the physical plenary.
Before the suspension, four ministers spoke out in favor of rejecting the appeals filed by the Institute of Social Security Studies (Ieprev) and the National Confederation of Metalworkers (CNTM). Among the arguments presented, the entities defended that the review be guaranteed for those who had legal proceedings in court. Lower courts have already guaranteed the right to review.
In addition to the rapporteur, Minister Nunes Marques, Cristiano Zanin, Flávio Dino and Cármen Lúcia voted in the same direction and denied the entities’ appeals.
The beginning of the story
Until the 1999 reform, the INSS took into account the average of the worker’s last three years of contributions to calculate the retirement benefit. The new regime defined that:
- for those who were already in the system, 80% of the largest contributions would be considered;
- for older insured persons, there would be a transitional rule that excluded salaries prior to July 1994 from the calculation;
- Workers who started contributing after the reform would enter a regime that considers the average salary of the entire insured period, without specifying time, with the discount of the so-called social security factor (calculation that takes into account age, contribution time and life expectancy on the date of retirement).
In 1999, two lawsuits were filed against the change — one by four political parties (PT, PSB, PCdoB and PDT), the other by the National Confederation of Metalworkers.
Those who felt they had been harmed for having made good contributions before this milestone began to ask the courts for all salaries, including those prior to 1994, to be considered for the calculation. This is the principle of a lifelong review.
Understand the judgment
Then, in 2022, the STF recognized the lifetime review, allowing retirees who went to court to request the recalculation of the benefit based on all contributions made throughout their lives.
The STF recognized, at that time, that the beneficiary could opt for the calculation criterion that yields the highest monthly amount, with the retiree being responsible for evaluating whether the lifetime calculation could increase the benefit or not.
According to the understanding, the transition rule created by the 1999 Social Security Reform, which excluded contributions prior to July 1994, when the Real Plan was implemented, could be removed if it was disadvantageous to the insured.
However, in 2023, the INSS filed an appeal with the Federal Supreme Court (STF) against the decision in the so-called lifetime review, which recognized the right of retirees to choose the social security rule that is most favorable to them. The INSS alleged billion-dollar losses with the review of benefits, estimated at R$480 billion for public accounts.
The agency says that the immediate application of the thesis approved by the ministers could lead to a “collapse in the service provided to those insured by the INSS”, with delayed payments and longer queues.
In February, the INSS requested the suspension of the proceedings, claiming it was unable to review the benefits. In response, the rapporteur of the case, Minister Alexandre de Moraes, requested that a payment schedule be sent to assess the agency’s planning before granting the suspension.
In March of this year, in a ruling on the government’s appeal against the recalculation, the Supreme Court ruled out the possibility of a ‘lifetime review’ by defining that the transitional regime for taxpayers prior to 1994 is mandatory.
The turnaround occurred because the ministers judged two actions of unconstitutionality against the Social Security Benefit Plans Law (Law 8,213/1991), and not the extraordinary appeal in which retirees gained the right to review.
When ruling that the 1999 social security rules were constitutional, the majority of the ministers understood that the transition rule is mandatory and cannot be optional for retirees according to the most beneficial calculation. The ruling reached a 7-4 vote.
The trial is now in relation to the insured parties who had already won the right to review, and another appeal by the government against the methodology.
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